Since 1998, the Equal Employment Opportunity Commission (EEOC) left employers to sift through the same old retaliation guidance to ensure their employment practices are compliant — until last summer. On August 25, 2016, the EEOC released EEOC Enforcement Guidance on Retaliation and Related Issues, along with a Q&A and Small Business Fact Sheet to help employers implement the updated guidance. This article helps to sort through the new guidance, focusing in particular on the EEOC’s major concerns regarding retaliation and what employers should do in 2017 and beyond to stay off the Commission’s radar.

Retaliation claims have doubled since the EEOC released the initial retaliation guidance in 1998. Nearly 45 percent of all EEOC charges include a claim of retaliation, and it has been the most frequently alleged basis of unlawful conduct in EEOC charges since 2015. The EEOC took into account how the courts have interpreted and applied the law to specific facts when drafting the updated guidance. Where the lower courts have not consistently applied the law, or the EEOC’s interpretation differs in some respect, the guidance states the Commission’s considered position and reasoning. Although most employers already understand the importance of creating outlets through which employees can voice any discrimination concerns without fear of retaliation, the updated guidance should cause them to reevaluate existing policies and make any necessary adjustments.

Protected Activity: What Kind and Why it Matters

The EEOC’s updated guidance stresses the three elements of retaliation that remain unchanged: 1) protected activity (“participation” in an EEO process or “opposition” to discrimination); 2) materially adverse action taken by the employer; and 3) a causal connection between the two. Protected activity has historically been placed in either the participation or opposition category. A distinction is drawn between these types of protected activity because they arise from two statutory retaliation clauses that differ in scope. It is important to understand the difference between the two because the Commission and some courts have seen a need to give greater protection to individuals who engage in participation than to those engaging in opposition activity. While the EEOC has narrowly defined participation to refer to individuals raising a claim, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the EEO laws, participation is broadly protected. And while opposition activity is broadly defined to encompass a wide range of ways an individual may communicate, explicitly or implicitly, opposition to perceived employment discrimination, protection for opposition is limited to a higher “reasonable belief” standard. That standard requires that the plaintiff has a reasonable belief that the action he/she was opposing was unlawful.

EEOC Paints Participation in Broad Strokes

The EEOC guidance states that an employer’s internal EEO complaint process can also be considered participation, although many courts characterize it as opposition. The Supreme Court in Crawford v. Metropolitan Government of Nashville & Davidson County left open the issue as to whether internal EEO complaints are considered participation. The EEOC has taken the view that there is significant overlap between participation and opposition activity and that internal EEO complaints can fit into both categories. The participation clause in Title VII contains no limiting language that would suggest an employer’s internal investigation procedure is only considered opposition activity as it states, “participated in any manner in an investigation, proceeding, or hearing” (emphasis added).

The Commission interprets the participation clause as broadly protecting internal complaints, even if the complainant does not have a reasonable, good-faith belief that the underlying allegations constitute unlawful conduct. The EEOC stresses in its guidance that “these protections ensure that individuals are not intimidated into forgoing the complaint process, and that those investigating and adjudicating EEO allegations can obtain witnesses’ unchilled testimony.”

Reasonable Belief Requirement for Opposition Activity Remains

The EEOC views opposition activity as any implicit or explicit communications an individual makes to an employer regarding perceived employment discrimination. However, unlike participation, opposition activity must be reasonable and must be based on a reasonable, good-faith belief that the conduct opposed is, or could become, unlawful. The Commission and courts impose this standard to balance the individual’s right to oppose employment discrimination against the employer’s need to have a stable and productive work environment. Although some conduct can fit into both categories, it is important to remember that the opposition clause protects a broader range of conduct than the participation clause.

The EEOC guidance includes numerous examples of protected opposition conduct, such as accompanying a coworker to the HR office to file an internal complaint, a female employee stating that the reason she is paid less is because of her sex, or an employee reporting to management harassment due to his/her sexual orientation. These situations would be considered opposition activity if the allegations were based on a reasonable, good faith belief that unlawful conduct had occurred.

Some other key points to note from the new guidance include the following:

• All individuals are protected from retaliation if they engage in opposition activity, including managers, human resources personnel, or other EEO advisers.
• The individual’s communication need not contain the words “harassment,” “discrimination,” or any other legal terminology, so long as they are conveying opposition to a perceived potential EEO violation.
• Complaints are not limited to those made to managers. Individuals can complain to union officials, coworkers, an attorney, or others outside of the company (including the police), and still be protected under the opposition clause.
• An employee telling their employer that they are going to file an EEOC charge is a reasonable form of opposition.
• Unreasonable forms of opposition include an employee making an overwhelming amount of patently specious complaints, badgering a subordinate employee to give a witness statement in support of an EEOC charge, unlawful acts, or threatening violence.
• Any employee, including managers, complaining to management about compensation or discussing rates of pay can be considered opposition activity. This provides employees more cushion than the National Labor Relations Act, which limits its protections to non-supervisory employees.
• Opposition to alleged discrimination does not give employees a free pass to stop performing their required job duties. Employers still have the right to discipline or discharge the employee if their opposition renders them ineffective in their job.

Materially Adverse Actions Can Be Non-Work Related, But Must Dissuade a Reasonable Person from Engaging in Protected Activity

Employers are still prohibited from engaging in materially adverse action against individuals who participate in or oppose EEO activity. Note that the employer’s actions must rise to the level that might deter a reasonable employee from complaining about discrimination, even if it does not indeed deter them. The 2006 landmark Supreme Court case Burlington Northern & Santa Fe Railway Co. v. White made clear that petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. Context is very important when deciding whether an employer’s actions are adverse and will depend on a fact-driven analysis, because an act that is immaterial in some situations may be material in others.

The EEOC points out that materially adverse actions can also be non-work related and have no effect on an individual’s employment. An action can take place outside of work and still be considered materially adverse as long as it would dissuade a reasonable person from engaging in protected activity. For example, disparaging an employee to others or in the media, making false reports to government authorities, making threats of deportation, and taking action against a close family member can all be materially adverse even if they are non-work related.

The Cause Behind Causation

In order for an employer to be liable for retaliation, there must be a causal connection between the protected activity and the materially adverse action. The EEOC guidance is employer-friendly with respect to causation, subjecting retaliation claims against private sector, state, and local government employers to the “but for” standard, as opposed to the more plaintiff-friendly “motivating factor” standard. (Federal sector employers are subjected to the more plaintiff-friendly motivating factor standard, under which the causation requirement can be met even if the employer would have taken the same action absent a retaliatory motive so long as it was a motivating factor.) The but for standard, which was set forth by the Supreme Court in University of Texas Southwest Medical Center v. Nassar, does not require that retaliation be the sole cause of the materially adverse action, but the individual must show that the employer would not have taken the materially adverse action but for a retaliatory motive.

The EEOC guidance explains that certain evidence, taken together, might allow an inference that the materially adverse action was retaliatory. Such evidence might include the employer’s oral or written statements, comparative evidence, inconsistent explanations, and suspicious timing. However, temporal proximity is not always required in order to find a causal connection and a retaliatory motive, which could very well exist even if the timing between the protected activity and materially adverse action is lengthy.

Even when a materially adverse action exists, an employer may provide a non-retaliatory reason for its action. The guidance lays out several examples where an employer could be found not liable due to its non-retaliatory reasoning:

• Employer was unaware of the individual’s protected activity.
• Even if the employer was aware of an individual’s complaints, it did not know that they concerned discrimination.
• Employer was motivated by a legitimate, unrelated reason such as an employee’s poor job performance, misconduct, or inadequate qualifications for the position sought.

The EEOC’s “Promising Practices” Serve as a Vanguard for Employers to Follow

The Commission concludes its guidance with “promising practices” for employers to implement. These steps are suggested to help reduce the risk of violations, but employers are encouraged to customize these practices based on their own workplace and circumstances.

The EEOC first suggests that all employers should develop a plain-language, anti-retaliation policy that includes examples of what should and should not be done in order to more thoroughly communicate the employer’s expectations. The EEOC guidance provides more than 30 fact pattern examples that employers can use and refer to when creating their policies. Employers should focus on the less obvious examples of retaliation that might not strike managers as actionable. The policy should also include proactive steps for avoiding retaliation, reporting mechanisms for employee concerns, and a clear explanation that retaliation can be subject to discipline, including discharge.

Employers should consider training all managers, supervisors, and employees on the anti-retaliation policy. A message from upper management that retaliation will not be tolerated, along with periodic refresher training, can be extremely beneficial. The EEOC suggests tailoring the training to address any specific deficiencies in EEO knowledge or behavioral issues that have occurred in the particular workplace. It is also important to stress that if particular individuals in management are accused of EEO violations, they should not act on feelings of revenge or retribution, although those emotions might arise. The training should also provide a detailed proactive process that management and human resources can use when an individual raises concerns about a potential EEO violation. Employers should follow up with the individuals promptly and seek additional information and clarification in order to ensure a complete investigation.

The guidance states that an “automatic part” of an employer’s response following EEO allegations should be to provide information to all parties and witnesses regarding the anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in it.

Lastly, employers should consider designating a human resources or EEO specialist, or in-house counsel, to review proposed employment actions of consequence to ensure that they were not decided on the basis of any discriminatory motive. This would require all decision makers to specify their reasoning for taking any adverse actions against an individual and to provide supporting documentation to back their reasoning. If a proposed action is believed to be driven by a retaliatory motive, the employer should implement any process changes necessary to prevent the scenario from repeating itself, including all of the above suggestions.

Trump Administration Could Affect EEOC Enforcement Agenda

With only days remaining before the Trump administration enters the White House, many employers are trying to forecast how the change will impact their workplace. With a surplus of questions and a deficit of answers, one can only predict how President-elect Trump will affect the EEOC’s enforcement agenda. Thus, it is imperative that employers solidify their anti-retaliation policies before the flowers of uncertainty blossom.

With the Republicans holding a majority in both houses of Congress, there will undoubtedly be changes in the EEOC’s personnel, resources, and substantive and procedural focus after President-elect Trump takes office. For instance, he has chosen Republican fast-food CEO Andrew Puzder as the Labor Secretary. In the past, Puzder has vehemently opposed raising the minimum wage to $15 an hour and enforcing the U.S. Department of Labor’s proposed expansion of overtime protection to more than 4 million workers. President-elect Trump will also have the opportunity to designate a new chair of the EEOC, which would impact processes greatly. In addition, former EEOC General Counsel David Lopez was closely scrutinized by Republican members of Congress for many decisions, including the EEOC’s pursuit of large-scale litigation where no aggrieved person had filed a discrimination charge. Lopez’s decision to step down from his position in December 2016, gives President-elect Trump the opportunity to appoint his successor. These high-level leadership changes will certainly impact the Commission’s strategic direction.

The Trump presidency could also lead to a shift in resources and create budget constraints. The EEOC’s budget under the Bush administration was continuously cut, and the Republicans could very well resume this trend in 2017 and beyond. If this occurs, the Commission will have to develop strategies on how to carry out its goals with a reduced budget. The EEOC has typically utilized its resources to focus on systemic litigation because these high-impact cases address employer practices that affect a wider range of employees or job applicants and have a greater deterrent effect. The EEOC might have to retool its efforts and focus on smaller cases that have less of an impact. With the new guidance in place, this could lead to the Commission focusing on allegations such as retaliation that usually have less of an impact on large groups of employees at a given time.

The contours of the EEOC enforcement landscape moving forward remain to be drawn, and employers should keep their finger on the pulse of any and all developments as President-elect Trump makes his way to the Oval Office. Adhering to the EEOC retaliation guidance that is already in place will assist employers in mending any gaps that may exist in current policies, or serve as a stepping stone to creating new policies to minimize their potential exposure.